View full sizeMarion County courtroom feedGary Haugen (in white) appeared in a Salem courtroom last fall.

Death row inmate Gary Haugen won a legal battle Friday against Gov. John Kitzhaber when a judge ruled he could reject the governor's reprieve of his execution and move forward in his efforts to die by lethal injection.

The opinion by Senior Judge Timothy P. Alexander is expected to initiate new adversarial proceedings between the prisoner who volunteered to die and the governor who had a change of heart about capital punishment.

Harrison Latto, the veteran Portland defense lawyer representing Haugen, said Friday he hadn't spoken to his client about the opinion.

"I'm sure he'll be gratified that the judge ruled in his favor," Latto said. "I think he will be happy his legal position has been vindicated."

Alexander, a state senior judge handling the case in Marion County, wrote that he put his personal feelings aside, ruling on legal precedent and the facts of the case. He took the unusual step of writing that his decision wasn't intended as criticism of Kitzhaber or the views the governor expressed when he issued the reprieve in November.

"In fact," Alexander wrote, "I agree with many of the concerns expressed by the governor, and share his hope that the Legislature will be receptive to modifying and improving Oregon laws regarding sentencing for aggravated murder.

"Many Oregon judges with experience presiding over death penalty cases would concur that the current law requires spending extraordinary sums of tax dollars that could be better used for other purposes to enforce a system that rarely if ever result in executions."

Alexander's opinion says that Kitzhaber can give Haugen a reprieve until he leaves office, but Haugen is not obliged to accept it.

"Because (Haugen) has unequivocally rejected the reprieve, it is therefore ineffective," the judge wrote.

Kitzhaber's response

Kitzhaber's office responded to the ruling, saying the governor likely will appeal it. "We are confident that the governor's authority will be upheld," the statement said.

Clatsop County District Attorney Josh Marquis, who advocates for Oregon's death penalty, credits Kitzhaber for taking a strong stand on such an emotional issue. But that stand, he said, comes with some political risk, because the majority of Oregon voters support capital punishment.

"The downside is, Oregonians are going to look at him when he runs for re-election and say, 'Wait a minute, does he really respect the law?"

Oregon has executed just two prisoners since reinstating the death penalty in 1984, both of whom volunteered to die during Kitzhaber's earlier terms as governor. The last of those executions was in 1997.

Haugen was sentenced to life in prison for murdering the mother of his former girlfriend in Northeast Portland in 1981. He later murdered a fellow prisoner at Oregon State Penitentiary. A jury sentenced him to death in 2007.

The Oregon Supreme Court affirmed the conviction and sentencing. Haugen abandoned further appeals, and the state conducted two death warrant hearings. A judge scheduled his execution for Dec. 6, 2011.

Kitzhaber, a former emergency room doctor, intervened two weeks before the execution date, announcing he wouldn't allow Haugen -- or any death row inmate -- to be put to death while he was in office. The governor described the death penalty as morally wrong and unjustly administered, and said he hoped voters would repeal the law.

"In my mind," he told reporters at the time, "it is a perversion of justice."

Haugen has repeatedly rejected the reprieve and demanded that his execution be carried out.

Next steps

If the governor appeals, the case could go before the Oregon Court of Appeals or the Oregon Supreme Court, depending on decisions made by parties to the case, said Phil Lemman, a spokesman for the Oregon Judicial Department. After that, a death warrant hearing would need to be scheduled before Haugen could be executed.

"We're a ways away from knowing when any execution date would be," Lemman said.

"This case is probably going to drag through more courts and go back and forth before it's finally decided," said Dieter, whose organization collects comprehensive national data on capital punishment and is widely viewed as opposed to the death penalty.

"I think ending the death penalty would eliminate these unnecesary problems, these decades of appeals, this spending of state resources on unresolvable questions. Better that the resources be put to the families of victims and on preventing crimes."